IN THE CASE OF: BOARD DATE: 17 January 2023 DOCKET NUMBER: AR20220000684 APPLICANT’S REQUEST: upgrade of his uncharacterized discharge to honorable discharge. He also requests a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for his personal records. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his waiver was never accepted or implemented, and no course of action was taken by recruiter. Lack of action by Army recruiter to fulfill his part in protecting background records, in effect led to the problem. In 1989, recruiter was under investigation for processing without full waiver implemented. Also, he would like a copy of his DD Form 214 for his personal records. 3. The applicant's service records show: a. On 13 Jan 1989, he enlisted into the Army Reserve for 8 years, with a 3-year Regular Army commitment to begin 14 February 1989. b. A review of his DD Form 398-2 (Personnel Security Questionnaire) shows: (1) Item 14a (Arrests), the applicant checks YES to “Have you ever been arrested, charged, cited or held my federal, state or other law enforcement?” (2) Item 14b (Arrests), the applicant checks YES to “Have you ever been convicted, fined by or forfeited bond to a federal, state or other judicial authority?” (3) Item 14i (Arrests), the applicant lists driving while intoxicated (DWI) as the nature of the offense or violation. (4) Item 15c (Medical/Financial), the applicant checks YES to “Has your use of alcoholic beverages ever resulted in the loss of a job, arrest by police or treatment for alcoholism?” (5) The applicant signed and dated, certifying that the entries made by him were true, complete, and accurate to the best of his knowledge. c. A review of his DD Form 1966 (Record of Military Processing) shows: (1) Item 35a (Law Violation), the applicant lists DWI conviction 1989. (2) Item 36b (Character and Social Adjustment), the applicant checks YES to “Has your use of drugs or alcoholic beverages (such as liquor, beer, wine), ever resulted in your loss of a job, arrest by police, or treatment of alcoholism, or drug abuse or suspension/expulsion from school.” (3) He signed and dated item 40 (Certification), certifying that the information given by him in this document is true, complete, and correct to the best of his knowledge. (4) His recruiter signed, acknowledging that he witnessed the applicant’s signature and that he verified the data in the documents. (5) Another service member signed, certifying that he has reviewed all information contained in the document and, to the best of his judgment and belief, the applicant fulfilled all legal policy requirements for enlistment. (6) On 14 February 1989, the applicant signed and dated in item 45 (Recertification by Applicant and Correction of Data at Time of Active-Duty Entry), recertifying that he has reviewed DD Form 1966 and that the information is still correct and true to the best of his knowledge. d. Upon completion of basic combat training, he assigned to Company B., 58th Transportation Battalion, 1st Engineer Brigade, Fort Leonard Wood, MO for the Motor Transport Operator Course, military occupational specialty (MOS/88M). e. DA From 2496 (Disposition Form), dated 31 May 1989, transmittal to the applicant’s commander with enclosed documentation substantiating fraudulent enlistment, specifically that the applicant was the subject of two or three Driving while Intoxicated convictions at the time of enlistment which were waivable. f. On 6 June 1989, the applicant's immediate commander informed him in letter of notification, that she is initiating action to separate him for fraudulent enlistment, under the provisions of Army Regulation (AR) 635-200 (Personnel Separations), Chapter 7-17 (fraudulent entry). The immediate commander recommended the applicant receive a characterization of an entry level separation and advised him of his rights. g. The applicant signed the letter of notification, acknowledging receipt. He elects to have counsel and he signed the non-waiver field, on DA Form 3881 (Rights warning Procedure/Waiver Certificate). He also submitted a memorandum, dated 7 June 1989, requesting a conditional waiver, acknowledging that he has been advised by counsel on basis for separation, AR 635-200, Chapter 7-17 (fraudulent enlistment). He voluntarily waived consideration of his case by an administrative separation board contingent upon receiving a characterization of service no less favorable than entry level separation. h. The immediate commander formally initiated separation action against him in accordance with AR 635-200, chapter 7 for Fraudulent Enlistment. The intermediate commander recommended approval. i. On 29 June 1989, the separation authority approved the recommendation for discharge and directed that the applicant be discharged due to fraudulent entry with an entry level separation – uncharacterized. j. On 5 July 1989, the applicant was discharged accordingly. His DD Form 214 (Certificate of Release or Discharge from Active Duty) show she was discharged in accordance with paragraph 7-17 of AR 635-200 with an uncharacterized discharge. He completed 4 months and 22 days of active service this period. He was assigned Separation Code JDA and Reentry Code 3. 4. Published guidance to the BCM/NRs clearly indicates that the guidance is not intended to interfere or impede on the Board's statutory independence. The Board will determine the relative weight of the action that led to the discharge and whether it supports relief or not. In reaching its determination, the Board shall consider the applicant's petition, available records and/or submitted documents in support of the petition. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. The Board noted that the applicant was separated in July 1989 while still in entry level status, under AR 635-200, chapter 7 due to fraudulent enlistment and his service was uncharacterized. He completed 4 months and 22 days of active service and was not awarded a military occupational specialty. Soldiers are considered to be in an entry- level status when they are within their first 180 days of active duty service. The evidence of record shows the applicant was in an entry-level status at the time his separation processing commenced. As a result, his service was appropriately described as "uncharacterized" in accordance with governing regulations. Based on a preponderance of evidence, the Board determined that the character of service the applicant received upon separation was not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, United State Code, section 1556 provides the Secretary of the Army shall ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) is provided a copy of all correspondence and communications, including summaries of verbal communications, with any agencies or persons external to agency or board, or a member of the staff of the agency or Board, that directly pertains to or has material effect on the applicant's case, except as authorized by statute. 3. AR 635-200, Chapter 7-17 Incident fraudulent entry a. Fraudulent entry is the procurement of an enlistment; reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment of information which, if known and considered by the Army at the time of enlistment or reenlistment; might have resulted in rejection. This includes all disqualifying information requiring a waiver. However, the enlistment of a minor with false representation as to age and without proper consent will not in itself be considered a fraudulent enlistment. The following tests must be applied in each case of suspected fraudulent enlistment or reenlistment. These tests will establish whether the enlistment or reenlistment was fraudulent. (1) First test. Commanders will determine if previously concealed information is in fact disqualifying. This information will be evaluated using the criteria for enlistment or reenlistment in AR 601-210 or AR 601-280. Any waivable or nonwaivable disqualification concealed, omitted, or misrepresented constitutes fraudulent entry. This includes concealing information with alleged or actual recruiter connivance: If, however, the newly revealed information does not amount to a disqualification from enlistment or reenlistment under the appropriate regulation, then there is no fraudulent enlistment or reenlistment. Hence, the enlistment or reenlistment is valid, and separation may not be directed. (2) Second test. Commanders must verify the existence and true nature of the apparently disqualifying information. Verification of the actual offense may reveal that the enlistee was not disqualified and, therefore, is not a fraudulent enlistee. For example, if the soldier alleged that he or she was convicted of burglary and placed on probation, inquires must be made whether he or she was convicted of burglary. In fact, he or she have initially been charged with burglary, but it may have been reduced to trespass which is a minor non-traffic offense for enlistment purposes. If it is the sole record which the soldier has, he or she is not disqualified for enlistment or reenlistment. Hence, the enlistment or reenlistment is valid, and separation may not be directed. To conduct in inquiry using these tests to establish existence of fraud, a delay of 30 days is considered reasonable. b. Any incident which meets the foregoing two tests may be cause for separation for fraudulent entry. 4. AR 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a (Honorable Discharge). An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) stated a general discharge was a separation from the Army under honorable conditions. The regulation authorized separation authorities to issue a general discharge to Soldiers whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Paragraph 3-9 (Uncharacterized Separations). Separation authorities were to describe a separation as entry-level, with service uncharacterized, if the commander- initiated separation processing while a Soldier was in entry-level status. The regulation additionally specified the Secretary of the Army, or designee, could grant a Soldier an honorable character of service, on a case-by-case basis, when clearly warranted by unusual circumstances involving personal conduct and performance of military duties. (1) Effective 28 January 1982, the Department of Defense (DOD) established "entry-level status" in DOD Directive 1332.14 (Enlisted Administrative Separations). (2) For active-duty service members, entry-level status began on the member's enlistment and continued until he/she had served 180 days of continuous active duty. 5. On 25?July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military DRBs and BCM/NRs regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court- martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220000684 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1